J. Nacamuli, t/a Nacamuli Associates and John J. Foster Company, Inc., to transfer this action to the Law Division pursuant to R. 4:3-1. This court signed an order today striking the equitable relief sought in the complaint in this action inasmuch as those issues were rendered moot for the reasons stated in the oral opinion by the court on this date. Quality and the other third-party defendants now submit that since all claims for equitable relief no longer exist in this case, the remaining issues should be heard in the Law Division. Mays Stores Shopping Centers, Inc. (Mays) opposes the transfer, arguing that once an action is properly commenced in the Chancery Division it must remain there even when the equitable relief is no longer required, appropriate or necessary.

A brief background of certain procedural points must be provided. In March 1975 Mays, formerly Consumers Distributing Company, commenced this action in the Superior Court, Chancery Division, against defendant Hartz Mountain-Free Zone Center (Hartz) alleging breach of contractual obligations pursuant to a lease entered into between Mays and Hartz in December 1972. By way of relief Mays sought damages and specific performance or recission of the lease. Hartz subsequently filed third-party complaints against the design professionals and subcontractors involved in the construction of the building in question.

By letter dated January 27, 1976 I advised counsel that a review of the pleadings and pretrial memorandum revealed that the primary relief being sought was legal rather than equitable and that the equitable issues involved were only incidental thereto. Accordingly, on my own motion and without a hearing, I ordered the case to be transferred to the Law Division pursuant to R. 4:3-1. Mays took exception to this ruling but the court, without a hearing, reaffirmed its decision by letter dated February 18, 1976.

Mays, however, was persistent in its opposition to this order of transfer and filed a nine-page letter memorandum setting forth the applicable law and facts and requesting a

hearing on this issue. On April 9, 1976 a full hearing was held with the consent of other counsel. Relying upon Mays' contention that the primary relief sought was equitable, the court by order of April 26, 1976 rescinded its prior directive transferring the matter to the Law Division. Now, despite the fact that the equitable claims no longer exist, plaintiff urges that the case cannot be transferred to the Law Division.

where an action is brought which in the first instance is cognizable in the Chancery Division, it should be retained in that division irrespective of the fact that before or during the trial the equitable phases of the cause have been fully disposed of, leaving only purely legal issues remaining for determination. [at 378, citation omitted; emphasis supplied]

The question is whether this court must retain jurisdiction after the equitable claims have been rendered moot.

An examination of the Steiner case reveals that this case did not establish new law but rather continued the practice formerly applicable to the Court of Chancery. Immediately preceding the above quotation relied on by plaintiff, the Steiner court stated:

It is plain from the letter and spirit of the Constitution and the rules that actions which were formally cognizable in the Court of Chancery -- those "maintainable in the Court of Chancery," where the "primary relief * * * or the principal relief sought is equitable" -- are now to be brought in the Chancery Division and, as under the old practice , once the jurisdiction of equity has attached "it may retain the cause for all purposes, and proceed to a final determination of the entire controversy, and except where the jurisdiction of equity depends on the prior establishment of a right at law, ...

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